JUDGMENT Niamatullah and Rachhpal Singh, JJ. - This is a Defendant's appeal and has arisen from a suit brought by the Plaintiff Respondent for damages for malicious prosecution. Both the courts below decreed the Plaintiff's claim. 2. The Defendant instituted criminal proceedings against the Plaintiff charging him with riot and assault. The Plaintiff was acquitted. Thereupon he instituted the present suit for the relief already referred to. The ground on which the judgments of both courts below have been challenged before! us is that the onus was wrongly thrown on the Defendant. The first two issues framed by the trial court ran as follows: (1) Whether the complaint and the report were true ? (2) Was the complaint malicious and were there no reasonable and probable grounds for making it. 3. The trial court expressly stated in its judgment that the Plaintiff having been acquitted should be deemed to be innocent, and that it was for the Defendant to establish that the charge was true. He discussed the evidence led by the Defendant in support of his case, namely, that the char(sic) preferred by him was true and found that the Defendants failed to establish the truth of the charge. Accordingly answered the first issue against the Defendant. The second issue which rightly throws the onus on the Plaintiff was disposed of in a few sentences without discussing the question whether there was absence of reasonable and probable ca(sic) The learned Subordinate Judge in appeal approached case from the same stand point. He also started with remark that the burden lay on the Defendant. Having tossed the evidence relied on by him he confirmed the fin(sic) of the court of first instance. There is no discussion of evidence led on behalf of the Plaintiff. 4. The learned Advocate for the Defendant-Appellant contended before us that both the lower courts wrongly th(sic) the burden of proof on the Defendant. It is settled law that in a suit for damages for malicious prosecution, it is, in th(sic) first instance, the duty of the Plaintiff to prove, at least prima facie, that there was no reasonable and probable cause (sic) the Defendant to prosecute the Plaintiff arid that the Defendant was actuated by malice, not in the sense of ill-will but in the peculiar sense in which that term is understood in law, namely indirect motive. The Learned Counsel for the Plaintiff-Respondent has not seriously questioned "the correctness of the rule mentioned above. He contended that as both parties led evidence in support of their allegations and as the courts belc(sic) considered the evidence as a whole, no question of or should be allowed to be raised in second appeal. It is also pointed out that no question was raised in the memorandum of appeal in the lovyer appellate court. We think that the manner in which the courts below have treated the case goes to the very root of it. It is not correct that they have considered the evidence as a whole. Both the courts have laid stress on the weakness of the evidence produced on behalf of the Defendant. We think that the lower appellate court should have approached the case in the manner indicated by us above. It should have considered the evidence led on behalf of the Plaintiff to satisfy itself whether the Plaintiff had succeeded in establishing absence of reasonable and probable cause on the part of the Defendant and further that he was actuated by malice. It may be that the circumstances of the case may justify the inference of malice from the absence of reasonable and probable cause. 5. In the view of the case we have taken, we set aside the decree appealed from and remand the case u/s 107, Code of Civil Procedure, to the lower appellate court for the decision of the appeal in accordance with law. Costs shall abide the result.